reply brief on merits – petitioner on review · 2019-02-21 · 2 16360-008(d)\1415177_7 promote...
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IN THE SUPREME COURT OF THE STATE OF OREGON
1000 FRIENDS OF OREGON,
Respondent,
Cross-Petitioner Below,
Respondent on Review,
DEPARTMENT OF LAND
CONSERVATION AND
DEVELOPMENT,
Intervenor Below,
Respondent on Review,
v.
JACKSON COUNTY,
Respondent before LUBA,
OR SOLAR 7, LLC
Petitioner,
Cross-Respondent Below,
Petitioner on Review.
Land Use Board of Appeals
Case No. 2017-066
Court of Appeals Case No. A166360
Supreme Court Case No. S066118
REPLY BRIEF ON MERITS – PETITIONER ON REVIEW
Review of the Decision of the Court of Appeals on Judicial
Review of the Final Order of the Land Use Board of Appeals
Court of Appeals Opinion Filed: May 31, 2018
Author of Opinion: Sercombe, Senior Judge
Concurring: Armstrong, Presiding Judge; Tookey, Judge
Continued …
February 2019
February 7, 2019 10:17 AM
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Josh Newton, OSB No. 983087 Meriel L. Darzen, OSB No. 113645
Ellen H. Grover, OSB No. 991978 1000 Friends of Oregon
Benjamin Eckstein, OSB No. 175090 133 SW Second Avenue
KARNOPP PETERSEN LLP Portland, OR 97204
360 SW Bond Street, Suite 400 [email protected]
Bend, OR 97702
Attorneys for Petitioner on Review Attorney for Respondent on Review
Ellen F. Rosenblum, OSB No. 753239
Attorney General
Benjamin Gutman, OSB No. 160599
Solicitor General
Denise G. Fjordbeck, OSB No. 822578
Attorney-in-Charge
Civil/Administrative Appeals
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Attorneys for Intervenor Department of
Land Conservation and Development
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INDEX
I. INTRODUCTION ...................................................................................... 1
II. ARGUMENT.............................................................................................. 3
A. Local Governments May Adopt Goal Exceptions to Allow
Nonfarm Uses Authorized by Goal 3 (Agricultural Lands) But
That Do Not Comply With Approval Standards For Those Uses. .. 3
B. The Facility Exceeds The Size Approval Standards For Siting
Photovoltaic Solar Power Generation Facilities on Agricultural
Land. ................................................................................................. 4
C. Jackson County Properly Justified a “Reasons” Exception to
Goal 3 to Allow the Facility to be Sited on High-Value Farmland. 5
1. The Rural Industrial Development Reason For Justifying an
Exception. .............................................................................. 8
2. The Residual Reason For Justifying an Exception. .............14
III. CONCLUSION ........................................................................................17
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TABLE OF AUTHORITIES
Cases
1000 Friends of Oregon v. LCDC (Curry Co.),
301 Or 447, 461, 724 P2d 268 (1986) .................................................................... 7
1000 Friends of Oregon v. Wasco County Court,
299 Or 344, 703 P2d 207 (1985) ......................................................................8, 13
Abu-Adas v. Employment Dep’t, Food Employers, Inc.,
325 Or 480, 940 P2d 1219 (1997) .......................................................................... 7
City of Klamath Falls v. Envt’l. Quality Comm’n,
318 Or 532, 543, 870 P2d 825 (1994) ..................................................................14
State v. Gaines,
346 Or 160, 206 P3d 1042 (2009) .......................................................................... 7
Stull v. Hoke,
326 Or 72, 79-80, 948 P2d 722 (1997) ................................................................10
Statutes
ORS 174.010 .............................................................................................................. 7
ORS 197.015 ........................................................................................................3, 15
ORS 197.251 ............................................................................................................16
ORS 197.732 .................................................................................................... passim
ORS 197.850 ............................................................................................................13
ORS 215.283 ..........................................................................................................2, 4
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Rules
OAR 660-004-0000......................................................................................... 3, 7, 15
OAR 660-004-0010................................................................................................3, 4
OAR 660-004-0020.................................................................................................... 6
OAR 660-004-0022.......................................................................................... passim
OAR 660-009-0005..............................................................................................9, 10
OAR 660-009-0010.................................................................................................... 9
OAR 660-022-0010……………………………………………………………….10
OAR 660-033-0130..................................................................................... 1, 4, 5, 11
Other Authorities
Or Laws 1983, ch 827, § 19 ....................................................................................... 8
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I. INTRODUCTION
LCDC has recognized that its rules should offer an “adequate balance
between agricultural lands protection and important power generation needs.”
PET APP-1.1 LCDC has struck that balance through OAR 660-033-0130(38),
which it intended to provide “reasonable opportunities to site photovoltaic solar
power generation facilities on productive agricultural lands * * *.” PET APP-2.
The rule imposed size limitations on such facilities that vary according to the
value of the farmland on which a particular facility is sited. In accordance with
ORS 197.732(3), LCDC also allows the siting of oversize facilities pursuant to
a goal exception.
OR Solar 7 proposes to site the Facility on high-value farmland in
Jackson County. The Facility exceeds the size approval standards under
OAR 660-033-0130(38). Consequently, OR Solar 7 sought and obtained a
“reasons” exception to Goal 3 pursuant to the “rural industrial development”
reason and, alternatively, the “residual” reason. DLCD and 1000 Friends
dispute that either reason justifies the proposed siting of the Facility, arguing
that the Facility is not “industrial” and that the Goal 13 (Energy Conservation)
requirement to conserve all forms of energy does not permit Jackson County to
1 Unless defined in this brief, capitalized terms are defined in the Brief on
Merits – Petitioner on Review, filed by OR Solar 7 on November 15, 2018
(“OR Solar 7 Merits Brief”).
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promote the development of renewable energy as a means to achieve the
Goal 13 mandate.
DLCD’s and 1000 Friends’ arguments, however, acquiesce to an
insurmountable logical flaw, which, if accepted, would preclude the siting of an
oversize photovoltaic solar power generation facility on any Goal 3 lands
anywhere in the state, not just the Site. That is not the result that LCDC
intended when it sought to balance agricultural lands protection with important
power generation needs and expressly authorized use of the goal exception
process to site oversize photovoltaic power generation facilities on agricultural
lands. While DLCD and 1000 Friends may object to LCDC’s policy choices,
they may not seek to override those legislatively-authorized choices under the
guise of rule interpretation.
The Facility is not an urban use but, rather, is a nonfarm use
conditionally allowed by statute. ORS 215.283(2)(g). The Facility preserves
the Site as high-value farmland and facilitates agricultural production on
adjacent land. Rec. 0313; Rec. 0074. The Facility would also temporarily
occupy the Site for 30 years before the Site returns to its original condition. Id.;
ER-7. In that sense, temporary use of the Site for the Facility is akin to
fallowing the Site. DLCD’s and 1000 Friends’ speculative concerns about
urbanization are not supported by the law or the record and should be
disregarded.
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II. ARGUMENT
A. Local Governments May Adopt Goal Exceptions to Allow Nonfarm
Uses Authorized by Goal 3 (Agricultural Lands) But That Do Not
Comply With Approval Standards For Those Uses.
Local governments generally must prepare and adopt comprehensive
plans in compliance with the Statewide Planning Goals, which are “mandatory
statewide land use planning standards.” ORS 197.015(5), (8). But, in certain
circumstances, a local government may include comprehensive plan provisions
that are applicable to specific properties or situations and that do not “comply
with some or all goal requirements.” See generally ORS 197.732. Those plan
provisions are known as goal “exceptions.” Id.
An exception may authorize a proposed land use when the use is either
(a) not allowed by an applicable goal, or (b) authorized by the goal but
inconsistent with the approval standards for that type of use. ORS 197.732(3);
OAR 660-004-0000(2). The intent of the exceptions process is to provide
“necessary flexibility” in the application of the Statewide Planning Goals.
OAR 660-004-0000(3). With respect to Goal 3 (Agricultural Lands), an
exception may authorize nonfarm uses allowed in the exclusive farm use zone
(EFU) but that cannot comply with the applicable “approval standards.”
OAR 660-004-0010(1)(a).
This review arises out of a proposed nonfarm use allowed in the EFU
zone but larger than the applicable approval standards allow—to wit, the siting
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of the Facility. See ORS 215.283(2)(g) (nonfarm use includes “[c]ommercial
utility facilities for the purpose of generating power for public use by sale”).
An exception may, thus, authorize siting the Facility notwithstanding the
applicable approval standards. OAR 660-004-0010(1)(a). Unlike the Court of
Appeals below, no party on review, including amici curiae, quarrels with that
proposition.2
This review begs the following questions: Does the Facility comply with
the applicable approval standards imposed by LCDC? If not, was Jackson
County authorized to adopt an exception to Goal 3 to allow the siting of the
Facility on high-value farmland within the EFU zone? For the reasons
explained below, the Facility exceeds the size approval standards imposed by
LCDC, but a reasons exception to Goal 3 justifies the siting of the Facility on
high-value farmland.
B. The Facility Exceeds The Size Approval Standards For Siting
Photovoltaic Solar Power Generation Facilities on Agricultural
Land.
LCDC has adopted approval standards relating to the size of photovoltaic
solar power generation facilities to be sited on agricultural land as a conditional
use. OAR 660-033-0130(38)(f)-(h). LCDC has sought to minimize the impacts
2 Compare ER-61 (“exception process to an allowed or required use
under a goal can only be used to justify a different use than the use allowed by
the goal”) with the briefs on the merits filed by DLCD (“DLCD Merits Brief”),
1000 Friends (“1000 Friends Merits Brief”), amicus curiae Oregon Solar
Energy Industries Association (“OSEIA Amicus Brief”), and amicus curiae
Oregon Farm Bureau Federation (“OFBF Amicus Brief”).
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of such facilities by limiting the size of the facilities in accordance with the
classification of the land on the site. Id. For high-value farmland, the size
approval standard applicable to such facilities is 12 acres. OAR 660-033-
0130(38)(f). LCDC has also expressly authorized the siting of oversize
facilities pursuant to an exception. OAR 660-033-0130(38)(f)-(h).
No party disputes or has disputed that the Facility would be located on
high value farmland and that the Facility would exceed the applicable 12-acre
size approval standard in OAR 660-033-0130(38)(f). OR Solar 7, thus, sought
and obtained an exception to Goal 3 to establish a limited use zoning district for
a commercial power generation facility on the Site. ER-1-8.
OR Solar 7 now turns to whether Jackson County properly adopted an
exception to Goal 3 to allow the siting of the Facility on high-value farmland
within the EFU zone. The short but unequivocal answer is yes.
C. Jackson County Properly Justified a “Reasons” Exception to Goal 3
to Allow the Facility to be Sited on High-Value Farmland.
A local government may adopt an exception to a goal in three
circumstances. ORS 197.732(2)(a)-(c). Germane to this review, a local
government may adopt a goal exception if “reasons justify why the state policy
embodied in the applicable goals should not apply” and certain additional
standards are met. ORS 197.732(2)(c)(A)-(C). That exception is commonly
known as the “reasons” exception.
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DLCD expressly concedes that a local government may adopt a reasons
exception to authorize the siting of a photovoltaic solar power generation
facility on high value farmland even though it exceeds the applicable size
approval standards. DLCD Merits Brief pp 12, 13 (citing the reasons exception
in ORS 197.732(c) as being the “applicable” exception pathway). 1000 Friends
also generally accepts that the reasons exception pathway is the appropriate
course to follow here. 1000 Friends Merits Brief pp 15-17. The crux of the
parties’ dispute centers narrowly on whether Jackson County’s decision
demonstrates that the Facility satisfies the standards underpinning the reasons
exception. See ORS 197.732(4) (local government approving exception must
demonstrate that statutory standards have been met).
LCDC’s rules setting forth its requirements for justifying a reasons
exception are set forth at OAR 660-004-0020 and OAR 660-004-0022. Those
rules are organized in accordance with the four substantive standards contained
in ORS 197.732(2)(c). Compare OAR 660-004-0020(2)(a)-(d) with
ORS 197.732(2)(c)(A)-(D). The precise issue on review is whether Jackson
County’s statement of reasons justifies why the state policy embodied in Goal 3
should not preclude development in this instance.
LCDC has enumerated 11 reasons that may justify a goal exception.
OAR 660-004-0022(1)-(11). Jackson County justified the exception to site the
Facility on high-value farmland pursuant to two alternative reasons:
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(a) the “residual” reasons exception, OAR 660-004-0022(1); and (b) the Rural
Industrial Development reason exception, OAR 660-004-0022(3). ER-1-8.
See 1000 Friends of Oregon v. LCDC (Curry Co.), 301 Or 447, 461, 724 P2d
268 (1986) (refers to OAR 660-004-0022(1) as the “residual” reasons rule).
DLCD and 1000 Friends dispute that either reason can justify why the state
policy embodied in Goal 3 should not prevent siting of the Facility.
OR Solar 7 first observes that DLCD incorrectly asserts that an exception
may be justified only in “unique circumstances.” DLCD Merits Brief p 4.
Nothing in the text of ORS 197.732 or Goal 2, Part II (Exceptions) so limits
when a local government may adopt an exception to a goal. See State v.
Gaines, 346 Or 160, 206 P3d 1042 (2009) (setting forth framework for statutory
interpretation); Abu-Adas v. Employment Dep’t, Food Employers, Inc., 325
Or 480, 940 P2d 1219 (1997) (setting forth framework for rule interpretation).
The Court should reject DLCD’s entreaty to insert provisions into the statute
and Goal 2, Part II, that have been omitted by the legislature and LCDC.
See ORS 174.010. That is especially so given that LCDC interprets the purpose
of the exception process as providing “necessary flexibility” in the application
of the Statewide Planning Goals. OAR 660-004-0000(3). Nothing in
ORS 197.732, Goal 2, Part II, or OAR chapter 660, division 4, authorizes the
heightened scrutiny suggested by DLCD.
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1000 Friends similarly misstates the law, arguing that an exception may
be justified only where there is a “compelling reason.” 1000 Friends Merits
Brief pp 1, 4. 1000 Friends purports to rely on Goal 2, Part II, and
1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207
(1985). But a close review of that case shows that the Oregon Supreme Court
referred to a prior version of Goal 2, Part II. Id. at 352 n 6. The Court
expressly noted that the 1983 legislature revised the exceptions process by
statute, citing Or Laws 1983, ch 827, § 19(a), codified as ORS 197.732. Id.
The Court observed that the statute “affected the standards for an exception.”
Id. Any “compelling reason” standard in former Goal 2, Part II was
legislatively abolished by ORS 197.732. Compare Goal 2, Part II (former) with
ORS 197.732 and Goal 2, Part II (current). 1000 Friends is mistaken to
suggest otherwise.
1. The Rural Industrial Development Reason For Justifying an
Exception.
Jackson County relied on subsection (c) of the rural industrial
development reason as justification for the exception, which provides, in part,
that “appropriate reasons and facts” for siting industrial development on
resource land outside an urban growth boundary include:
“use[s that] would have a significant comparative advantage due to
its location (e.g., near existing industrial activity, an energy
facility, or products available from other rural activities), which
would benefit the county economy and cause only minimal loss of
productive resource lands. * * * .”
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OAR 660-004-0022(3)(c). DLCD and 1000 Friends contend that the rural
industrial development reason cannot justify an exception to Goal 3 on two
grounds. DLCD Merits Brief pp 2-3, 14-22; 1000 Friends Merits Brief pp 6-7,
19-28. First, DLCD and 1000 Friends assert that the Facility is not “industrial”
development. Id. Second, DLCD and 1000 Friends argue that the Facility does
not have a “significant comparative advantage” due to its location. Id.
a. The Facility Is An Industrial Development.
Relying principally on the definition of “industrial use” in OAR 660-009-
0005(3), DLCD and 1000 Friends assert that the Facility is not “industrial”
because it does not provide some minimum level of employment activity.3
The definition of “industrial use” in OAR 660-009-0005(3), however, does not
apply to OAR chapter 660, division 4; its application is limited to OAR chapter
660, division 9, which applies to areas within an urban growth boundary.
OAR 660-009-0010(1). By its plain language and context, Division 9 and the
definitions contained therein do not govern rural industrial development outside
an urban growth boundary, such as the Facility. Id.
3 OR Solar 7 has briefed this issue below and incorporates that briefing by
reference here. Petitioner/Cross-Respondent OR Solar 7, LLC’s Answering
Brief, filed January 2, 2018, pp 11-25. DLCD and 1000 Friends also assert that
the Facility is not an industrial development because OAR 660-004-0022(3)
distinguishes between “industrial use” and “energy facility.” OR Solar 7 has
addressed that argument in its opening brief and incorporates the argument by
reference in this brief. OR Solar 7 Merits Brief pp 34-38.
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The timing of the promulgation of OAR 660-009-0005(3) further
confines the limited contextual weight, if any, accorded to that rule in
construing OAR 660-004-0022(3). See Stull v. Hoke, 326 Or 72, 79-80, 948
P2d 722 (1997) (rules provide context where those rules came into existence
contemporaneously with or before the rule at issue). LCDC promulgated
OAR 660-004-0022 in 1983. LCDC did not promulgate Division 9 until 1986.
OAR 660-009-0005(3) should not be used to modify the plain meaning and
context of “rural industrial development” because there is no evidence that
LCDC intended for that later-established definition to apply to OAR 660-004-
0022(3).
OAR 660-022-0010(4) further minimizes any remaining utility of
OAR 660-009-0005(3) as context for interpreting the meaning of “industrial
development” in OAR 660-004-0022(3). For purposes of OAR chapter 660,
division 22, “industrial use” means “the use of land primarily for the
manufacture, processing, storage, or wholesale distribution of products, goods,
or materials * * *.” OAR 660-022-0010(4). That definition does not refer to
employment activities. Contrary to DLCD’s and 1000 Friends’ assertions,
LCDC does not consider such activity to be an essential feature of industrial use
in all circumstances. Rather, the consistent theme contained in the plain and
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ordinary meaning of “industrial development” and its context is the
manufacture, production, or distribution of goods.4
Even if this Court determines that rural industrial development must
create employment activity, the substantial evidence in the record shows that
the Project will indeed create jobs. The Project will create one to three
permanent jobs. Rec. 0006; 0313; LUBA Rec. 0064. That level of employment
is consistent with LCDC’s notion of “rural” industrial development. See OAR
660-004-0022(3) (goal exception taken for industrial development on resource
land must be rural in nature). “Rural” development has characteristics of low
intensity, impact, and density. See Statewide Planning Goals (definitions). By
allowing the construction of photovoltaic solar power generation facilities on
high-value farmland as a conditional use, LCDC has determined that such
facilities possess those characteristics. OAR 660-033-0130 (38)(f).
The Facility, a photovoltaic solar power generation facility, possesses
characteristics of “rural” development as understood by LCDC. In addition to
being located on rural land outside the UGB, the Facility will cause no adverse
impacts or urbanization of surrounding rural land. ER-5-6 (Finding 2.6). It will
4 DLCD challenges the notion that the Project produces goods in the form
of electrical power for sale to an electric utility. DLCD asserts that goods are
commonly understood as “something manufactured or produced for sale.”
DLCD offers no analysis or authority supporting its assertion that electricity is
not a “good” in the ordinary meaning of the term, and it never answers why the
electrical power produced for sale by the Facility is not a good under DLCD’s
own definition of “goods.”
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also preserve and maintain the Site for agricultural use and enhance commercial
agricultural operations on the landowner’s remaining 445 acres of farmland.
Rec. 0074.
b. The Facility Has a Significant Comparative
Advantage Due to Its Location.
An appropriate reason for siting the Facility on the Site includes the fact
that the proposed use “would have a significant comparative advantage due to
its location (e.g., near existing industrial activity, an energy facility, or products
available from other rural activities), which would benefit the county economy
and cause only minimal loss of resource lands.” OAR 660-004-0022(3)(c).
Jackson County concluded that the “proximity of the Sage Substation provides
a significant comparative advantage, would benefit the local economy, and as
approved, does not involve a loss of resource lands.” ER-5-6 (Finding 2.6).
The County also found that:
“solar electricity generation facilities such as the proposed project
must be located near existing substations with available
transmission capacity in order to be economically viable. * * *
[I]n order to be feasible, the substation must have the requisite
transmission capacity as well as several other attributes.
“* * * Sage Substation is one of only several available within
Jackson County capable of supporting solar development such as
the [Facility] * * *.
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“[The Facility] will initially provide 100 construction jobs and at
least one-full time equivalent job during operations. Additionally,
the [Facility] will provide a revenue stream (via lease payments)
for property that exceeds the commercial benefit of the current
agricultural operations and will help support ongoing agricultural
activities on adjoining land. The development will also result in a
significant increase in the tax revenues received by the County for
the subject property. Thus, the proposed project will benefit the
local economy.
“[T]he construction of the [Facility] involves driving posts
supporting the solar panel arrays, with minimal soil compaction or
topsoil removal. As guaranteed by the bond required by the
Conditions of Approval * * * after 30 years the [Site] will be
returned to substantially the same condition it is in now and will
again be suitable for and capable of supporting agricultural
activity. As such, the impact to productive resource land is
temporary, and no resource lands will be permanently lost as a
result of the construction of the [Facility].”
Id. DLCD and 1000 Friends assert that the Sage Substation cannot, as a matter
of law, serve as the “locational attractor” for the Facility.5 OR Solar 7 has
already briefed this issue below and incorporates that briefing by reference
here. Petitioner Or Solar 7, LLC’s Corrected Opening Brief, filed December 6,
2017, pp 13-22.
5 1000 Friends also asserts that there is “no significant comparative
advantage that justifies the use of resource land” for the Facility. 1000 Friends
Merits Brief pp 22-28. See 1000 Friends of Oregon (Wasco County), 299 Or at
352, n 6 (analyzing effect of ORS 197.732 on former Goal 2, Part II). 1000
Friends’ assertion is tantamount to challenging Jackson County’s findings of
fact. Those findings are supported by substantial evidence and are binding on
review. See ORS 197.732(6)(a) (LUBA bound by findings of fact supported by
substantial evidence); ORS 197.850(8) (court cannot substitute its judgment of
LUBA as to any issue of fact).
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LCDC did not intend to restrict the universe of locational attractors to
“rural energy facilities.” If LCDC had so intended, it would have said so,
especially given that it did say so in very next subsection of the rule. See
OAR 660-004-0022(4)(a)(B)(i) (industrial use must be near a “rural energy
facility”). That conclusion is reinforced by OAR 660-004-0022(3)(a) and (b).
Pursuant to those subsections, LCDC has directed local governments to
consider unique resources on agricultural land or forest land and to consider
hazards of locating the proposed use inside the UGB. Such considerations are
absent from OAR 660-004-0022(3)(c) and should not be inserted under the
guise of rule interpretation, which is not permitted under Oregon law. See City
of Klamath Falls v. Envt’l. Quality Comm’n, 318 Or 532, 543, 870 P2d 825
(1994).
2. The Residual Reason For Justifying an Exception.
The “residual” reason for justifying an exception provides that the
“reasons shall justify why the state policy embodied in the applicable goals
should not apply.” OAR 660-004-0022(1). Such reasons include but are not
limited to showing that “[t]here is a demonstrated need for the proposed use or
activity, based on one or more of the requirements of Goals 3 to 19,” together
with two additional, alternative requirements. Id. For purposes of this review,
the question presented is whether the demonstrated need for the Facility can be
based on the requirements of Goal 13 (Energy Conservation).
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Goal 13 provides:
“To conserve energy.
“Land and uses developed on the land shall be managed and
controlled so as to maximize the conservation of all forms of
energy, based upon sound economic principles.”
OAR 660-004-0000(13). Goal 13 undeniably contains a requirement to manage
land and uses on land so as to “maximize the conservation of all forms of
energy, based on sound economic principles.” The energy conservation
requirement in Goal 13 can, in appropriate circumstances, demonstrate the need
for a goal exception, which, of course, is correct given that Goal 13 is included
in the list of goals whose requirements can demonstrate a need for a proposed
use. See OAR 660-004-0022(1)(a) (demonstrated need based on “requirements
of Goals 3 to 19”).
The issue presented on review is whether Goal 13 imposes a requirement
that demonstrates the need for the Facility. DLCD and 1000 Friends appear to
misunderstand OR Solar 7’s position. OR Solar 7 is not arguing that Goal 13
requires the development of renewable energy in all circumstances. OR Solar 7
contends that the development of renewable energy projects, such as the
Facility, is an approach that Jackson County has chosen to satisfy Goal 13’s
requirement to conserve all forms of energy in accordance with Goal 13 and its
guidelines. ORS 197.015(9) (guidelines are “suggested approaches designed to
aid” local governments in carrying out the goals).
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The Jackson County Comprehensive Plan, Chapter 11, contains its
approach for carrying out the requirements of Goal 13. Rec. 000102-127.
Jackson County’s energy conservation goal is to “effect the optimum
conservation of energy and use of local renewable resources.” Rec. 000102
(emphasis added). There can be no reasonable dispute that the County
understood Goal 13’s energy conservation mandate to include the option of the
development of renewable energy. Given that it has acknowledged the
County’s comprehensive plan as compliant with the goals, including Goal 13,
LCDC has determined the development of renewable energy to be an allowable
approach for satisfying the requirements of Goal 13. See ORS 197.251(1)
(LCDC acknowledges comprehensive plan compliance with goals).
Because it has chosen the development of renewable energy as a means
to achieve the energy conservation requirements of Goal 13, Jackson County
properly concluded that there is a demonstrated need for the Facility under
OAR 660-004-0022(1)(a). DLCD’s and 1000 Friends’ arguments to the
contrary should be rejected.6
6 The development of renewable energy is within the ambit of Goal 13’s
requirement to maximize the conservation of “all forms of energy.”
(Emphasis added.) Sources of electrical power are generally divided into
renewable and non-renewable forms. Non-renewable energy includes fossil
fuels, such as coal, while solar power is a form renewable energy.
The development of renewable solar power as a substitute for fossil fuels is
undeniably a form of energy conservation and a primary tool at the state,
national, and international levels to reduce greenhouse gas emissions and
mitigate the effects of climate change.
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III. CONCLUSION
For the reasons set forth in this reply brief, OR Solar 7 requests that the
Court reverse the Court of Appeals. In the event of a remand to LUBA,
OR Solar 7 asks the Court to instruct LUBA to conduct its remand proceedings
in a manner that abides LCDC’s intent to harmonize state land use and energy
policies and in a manner that is congruent with federal law.
Respectfully submitted.
DATED this 7th day of February, 2019.
KARNOPP PETERSEN LLP
s/ Josh Newton
Josh Newton, OSB No. 983087
Of Attorneys for Petitioner on
Review, OR Solar 7, LLC
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CERTIFICATION OF COMPLIANCE
WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS
Brief length
I certify that (1) this brief complies with the word-count limitation in
ORAP 5.05(1)(b)(E) and that (2) the word count of this brief (as described in
ORAP 5.05(1)(a)) is 3,884 words.
Type size
I certify that the size of the type in this brief is not smaller than 14 point
for both the text of the brief and footnotes as required by ORAP 5.05(3)(b)(ii).
DATED this 7th day of February, 2019.
KARNOPP PETERSEN LLP
s/ Josh Newton
Josh Newton, OSB No. 983087
Of Attorneys for Petitioner on Review
OR Solar 7, LLC
16360-008(d)\1415177_7
NOTICE OF FILING AND PROOF OF SERVICE
I certify that I filed this Reply Brief on Merits with the Appellate Court
Administrator on this date by using the appellate courts’ eFiling system.
I certify that service of a copy of this Reply Brief on Merits will be
accomplished on the following participants in this case, who are registered
users of the appellate courts’ eFiling system, by the appellate courts’ eFiling
system at the participant's email address as recorded this date in the appellate
eFiling system:
Meriel L. Darzen, OSB No. 113645
1000 Friends of Oregon
133 SW Second Avenue, Suite 201
Portland, OR 97704
Attorney for Respondent on Review
1000 Friends of Oregon
Denise G. Fjordbeck, OSB No. 822578
Attorney-in-Charge
Civil/Administrative Appeals
1162 Court St. NE
Salem, Oregon 97301-4096
Attorney for Respondent on Review
Department of Land and Conservation
Development
Damien R. Hall
Ball Janik LLP
101 SW Main Street, Suite 1100
Portland, Oregon 97204
Attorney for Amicus Curiae Oregon
Solar Energy Industries Association
Timothy J. Bemasek
Dunn Carney Allen
851 SW 6th Avenue, Suite 1500
Portland, Oregon 97204
Attorney for Amicus Curiae Oregon
Farm Bureau Federation
DATED this 7th day of February, 2019.
KARNOPP PETERSEN LLP
s/ Josh Newton
Josh Newton, OSB No. 983087
Of Attorneys for Petitioner on Review,
OR Solar 7, LLC